RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01575 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her bad conduct discharge (BCD) be upgraded to an honorable discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: Her court-martial and BCD were harsh for the offense committed considering her peers received administrative discharges for offenses such as selling/using drugs, driving under the influence (DUI), or driving while impaired (DWI). Prior to this incident, she was a model airman. Her accomplishments while on active duty were not mentioned or considered during her court-martial. Her accomplishments outweighed her misconduct. In support of her appeal, the applicant provides copies of documents extracted from her military personnel records, three character references, and two certificates. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 28 January 2003, the applicant contracted her enlistment in the Regular Air Force. The applicant was accused of breaking into another service member’s room and stealing money between March and April 2005. She was charged with one specification of larceny and housebreaking. On 17 August 2005, she was tried by special court-martial and pled guilty to the charges and specifications pursuant to a pretrial agreement. The military judge did an inquiry of the guilty pleas and found them provident and entered a finding of guilty for both charges and specifications. During her unsworn statement, the applicant indicated she intended to return the money she stole. The military judge did an inquiry of the lesser included offense – wrongful appropriation rather than larceny and found her guilty of housebreaking, not guilty of larceny, and guilty of wrongful appropriation. She was sentenced to a BCD, confinement for six months, and reduction to the grade of airman basic. On 11 October 2005, the convening authority approved the sentence as related to the BCD, confinement, and reduction in rank. On 14 August 2006, the Air Force Court of Criminal Appeals affirmed the findings and sentence. The applicant appealed to the United States Court of Appeals for the Armed Forces for review of her conviction. On 4 December 2006, the court denied the appeal, therefore making the findings and sentence final. Her BCD was executed on 26 January 2007. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a report indicating they were unable to locate an arrest report based on the information provided. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial noting a review of the record of trial shows no error in the processing of the court-martial, to include the issues raised by the applicant. Prior to trial, the applicant indicated she would plead guilty to the charges and specifications in exchange for confinement not to exceed five months if a BCD was adjudged, or confinement not to exceed seven months if a BCD was not adjudged. She plead guilty as agreed to in the pretrial agreement and the judge did two inquiries of her plea to ensure she understood the meaning and effect of her pleas and the maximum punishment she could receive if her guilty plea was accepted by the court. In addition, on both occasions, the judge explained the elements and definitions of the offense and the applicant expressed why she believed she was guilty. After accepting the applicant’s guilty plea, the court received evidence in aggravation, as well as in extenuation and mitigation, prior to crafting an appropriate sentence for the crimes committed. The applicant also gave an unsworn statement and her counsel submitted two character statements on her behalf in support of leniency. The judge considered these factors when imposing the sentence. The imposed sentence was below the maximum possible of a BCD, one year confinement, forfeiture of two-thirds pay per month for 12 months, and reduction in rank to airman basic. Additionally, she received a favorable cap on punishment in her pretrial agreement. As for the applicant’s contention that her personal accomplishments were not considered during her trial and in her request for clemency, a review of the Record of Trial indicates that this was a decision she and her counsel made at the time. She had multiple opportunities, to include her unsworn statement, to bring up her accomplishments, but chose not do so. The applicant also could have submitted the information as defense exhibits for consideration by the judge before sentencing or in conjunction with her clemency submission. While clemency may be granted, the applicant provided very little justification in support of her request. A BCD is designed as a punishment for bad conduct. The BCD is more than a service characterization; it is a punishment for the crimes she committed while on active duty. Her sentence to a BCD, reduction in rank, and confinement was well within the legal limits and was an appropriate punishment for the offenses committed. Additionally, to grant clemency in this case would be unfair to those individuals who honorably served their country while in uniform. Congress' intent in setting up the Veterans Benefits Program was to express thanks for veterans' personal sacrifices, separations from family, facing hostile enemy action and suffering financial hardships. All rights of a veteran under the laws administered by the Secretary of Veterans Affairs are barred where the veteran was discharged or dismissed by reason of sentence of general court-martial. It would be offensive to all those who served honorably to extend the same benefits to someone who committed a crime such as the applicant’s while on active duty. The AFLOA/JAJM complete evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 24 June 11, for review and comment within 30 days. As of this date, no response has been received by this office. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We note that this Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction. Rather, in accordance with Title 10, United States Code, Section 1552(f), actions by this Board are limited to corrections to the record to reflect actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency. We find no evidence which indicates the applicant’s service characterization, which had its basis in his court-martial conviction and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice (UCMJ). We have considered the applicant’s overall quality of service, the court-martial conviction which precipitated the discharge, the seriousness of the offenses to which convicted, and the documentation pertaining to the applicant’s post-service activities. Based on the evidence of record, we cannot conclude that clemency is warranted in this case. Therefore, we find no basis upon which to favorably consider this application. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-01575 in Executive Session on 10 Jan 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 25 Apr 11, w/atchs. Exhibit B. Applicant's Master Military Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 28 Jun 11. Exhibit D. Letter, SAF/MRBR, dated 8 Jul 11.